Recently, Maryland United States District Court Judge Peter J. Messitte denied the State of Maryland’s motion to dismiss Plaintiff Thomas Corcoran’s Second Amendment as-applied challenge to his non-violent felony (or possibly misdemeanor) conviction in relation to his unauthorized use of his then-girlfriend’s car. Although charged and convicted in Virginia, Maryland law provides that Maryland disqualifications include out-of-state convictions, and, that in determining whether an out-of-state conviction is a “disqualifying crime,” a Maryland agency must look to the maximum sentence of the crime within its own Criminal Article that it considers the closest equivalent to the out-of-state conviction.

For way of background, Corcoran is a sixty-five year old resident of Bethesda, Maryland, who, other than
the Virginia conviction forty years ago, has no other criminal history. Pursuant to Virginia law, depending upon the value of the property involved, is either a Class 1 misdemeanor or a Class 6 Felony. Specifically, if the value of the taken property was under $100, the defendant was subject to a Class 1 misdemeanor, carrying a maximum sentence of one year in
jail. Otherwise, the crime was considered a Class 6 felony punishable by no less than one year and no more than five years in jail. The court notes that although Mr. Corcoran contends that he only pled guilty to a misdemeanor, there was no evidence submitted to support this contention (however, the remainder of the decision does refer to his conviction as a misdemeanor). On December 14, 2015, he applied to the Maryland State Police (MSP) for a Handgun Qualification License – seeking to purchase and possess a handgun to defend himself and his family within his own home – which was denied by the MSP on January 8, 2016 on the basis of his 1976 Virginia conviction being prohibiting.

The court swiftly, as unfortunately expected, dismisses his facial challenge to Maryland’s state law prohibition. However, Mr. Corcoran also brought a Second Amendment as-applied challenge. In reviewing the pertinent case law regarding as-applied challenges, the court found that in relation to the first prong of a Second Amendment as-applied challenge, “Corcoran has plausibly demonstrated that his conduct is within the protected Second Amendment right of a law-abiding, responsible citizen.” This is based, in part, on Mr. Corcoran’s sentence of 90 days imprisonment suspended, no fine and no probation, which the court refers to as “extraordinarily light.”

In turning to the second prong, although only applying intermediate scrutiny, the court declares that “[t]he State Defendants have demonstrated a substantial government objective, but based on the current record, have not shown a reasonable fit.” While acknowledging that the “Maryland Firearms Prohibitions serve the Government’s compelling interest in promoting public safety and preventing crime by keeping firearms out of the hands of individuals who, by virtue of their prior convictions, have proven to be particularly likely to misuse firearm,” the court declares that Maryland, at this at this juncture, failed in its “burden of demonstrating that there is a ‘reasonable fit’ between the challenged regulations—i.e., those intending to keep firearms out of the hands of individuals convicted of Maryland misdemeanors carrying a maximum statutory penalty of more than two years or, for out-of-state sentences, convictions for which the equivalent crime in Maryland carries a maximum statutory penalty of more than two years—and the State’s interest
in protecting the public and preventing crime.”

While this may be one of the first, plausible, non-violent felony Second Amendment as-applied challenges, the grading of the conviction is in dispute. Regardless, although the Third Circuit has found that an individual can bring a successful Second Amendment as-applied challenge to a non-violent misdemeanor offense, the Fourth Circuit, which includes Maryland, has not similarly ruled. Accordingly, this is a monumental decision, albeit a non-final decision on the merits. Unfortunately, a final decision is not anticipated for at least six months, with the likelihood being that any decision will not be rendered until closer to twelve months.